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Parliamentary Joint Committee on Human Rights
01/02/2017
Freedom of speech in Australia

SINGH, Dr Yadu, President, Federation of Indian Associations of NSW

[12:20]

CHAIR: Welcome. I invite you to make a brief opening statement—in the interests of time, could it be kept fairly short?—and then members of the committee may ask some questions.

Dr Singh : Thank you. Freedom of speech is an important concept, but it is never an absolute right. There are always some restrictions. Australia has been a successful example of a multicultural nation, where people are allowed and encouraged to be proud of and celebrate their heritage within the overall ethos, values and principles of Australia. One of the main reasons for the Australian success story is the general freedom from racial abuse which people enjoy with the help of the Racial Discrimination Act. Section 18C is the key mechanism to facilitate freedom from racial abuse. It does not infringe on freedom of speech because section 18D provides the grounds for exemptions from application of 18C. People who oppose 18C, particularly those who want to change the 'insult and offend' components, tend to forget that in the 18C cases which have gone to court, judges have been very clear that it applies to only the very serious component of the offence, not just feelings.

The complaint cases which have gone to the court have been very few. Most of them have been managed by the Human Rights Commission, but there are, of course, some cases which have been frivolous and vexatious, and the classic example of that was the QUT case. I have no doubt that that really should not have gone to court. We want a strong Racial Discrimination Act, but at the same time we do not want vexatious cases to go to court. How do we manage it? We should change the complaint-handling process by amending the act which governs the Australian Human Rights Commission dealing with 18C complaints. That would deal with that issue of vexatious complaints. At the same time I do not want to have the Human Rights Commissions staff soliciting complaints either, because that is politics and that is not their job. So I have some views about this. I am not against freedom of speech, but it cannot be absolute, because if it is allowed, it will lead to damaging the cohesion of this great country. With that, I am open to any questions, esteemed members of the committee.

Mr PERRETT: Thank you, Dr Singh. You do not have to answer this question, but are you a Sikh?

Dr Singh : No. I am not a Sikh. I am of the Rajput background of the Indian community, and the Singh surname is basically the majority in my community. Sikhs are only a minority.

Mr PERRETT: The reason I ask is that I was going to ask about religion. Your submission said that you are very much aware of the harms of racist speech. Could you give concrete examples of the harm from racism suffered by those in the Indian-Australian community?

Dr Singh : Sure. I take the example of the Sikh community. I am very close to that community. My value system is similar to their value system. Many of my Sikh friends have been abused, called terrorists, called all sorts of names, and many of them have complained that it is affecting their standing, affecting their mental wellbeing. So racism is here. There is no doubt about that.

Mr PERRETT: Because of their headdress?

Dr Singh : They have the special turban, which is their religious dress, and they have been abused many times. Some of them have had their turban removed on public transport. So it does affect them. I must admit that I also have been subjected to racist treatment, but I have a very important principle that guides my life, and that is to never allow anyone to make you a victim. So I give it back to them. For example, somebody asked me in a train, 'Where are you from?' and I said, 'It does not matter,' so he got more aggro and he started abusing me. But, to my pleasure, 30 people in the compartment of the train—I was going to Caringbah—stood up for me, and they told the guy: 'You are getting out at Mortdale. You are not going on this train.' So, I had a choice to make: should I become a victim or should I not become a victim? I chose not to become a victim, and that is very important. But there is, of course, serious racial abuse—there is no doubt about that; we see that every day. The Racial Discrimination Act does prevent that to a large extent.

Mr PERRETT: Obviously you are a confident leader in your community, but not everyone in your community would have the backbone, resources and education that you have, so they might have a different experience. I notice that your submission says that the very establishment of this inquiry, with such terms of reference, irrespective of the outcome, gives unfortunate negative messages. What message would it give to your community if the parliament decided to water down or repeal section 18C?

Dr Singh : Let there be no doubt that the general impression in the community, not only in my community but in many other communities, is that this is some agenda driven by extreme right-wing politicians trying to dilute or remove 18C. This is the message in the community, and let there be no doubt about that. I do not believe in theory that people have a right to be bigots—you know what I am talking about. People do have a negative view about this; there is no doubt about that. If you were to do this—I am saying this to you, esteemed members—it will create a negative message in the community. But that does not mean that we should not modify or amend or streamline the process of complaint handling, because we want a strong RDA, but at the same time it has to be a fair one. It should not impinge undesirably on the freedom of speech. As I said in the beginning, freedom of speech is not an absolute right, otherwise we would get in a war with defamation law. If I say something nasty to you outside parliament, you would take me to court for defamation. So, it is not absolute. But at the same time there are problems with the RDA, and those problems have been very obvious. The Bill Leak case: I do not believe that there should have been a complaint about that. I do not believe the QUT case should have gone to court either. But those problems are small problems—somebody said two per cent; I was reading 1.8 per cent. What I am saying is that those minor things are not acceptable and we should fix them by the complaint-handling process amendment of the Human Rights Commission.

Mr LEESER: Dr Singh, you like many other ethnic community leaders have indicated your ongoing support for section 18C as it currently stands, but you have also noted that the process of the commission needs to be improved, and in your submission you have largely endorsed the proposals that I put forward.

Dr Singh : Yes.

Mr LEESER: Why do you think it is the view of your community and many other ethnic community leaders that, despite the strong support for section 18C as it is, you are willing to countenance some of the procedural reforms?

Dr Singh : We live in a Western liberal democracy where freedom of speech is important. As I said, it is not absolute, but it is important. There have been problems. Those students were left with, I think, a $250,000 legal bill, or would have been left with a damage bill. This was an abuse of process. I have seen the comments made by the students, and there was nothing which basically deserved that should have been complained of to the Human Rights Commission or to court. So there are problems.

If somebody goes against me and makes a complaint under 18C, I have to hire a lawyer if it goes to court. That costs money. If I have really done a bad thing then I should be taken to court—and not only that, but the vexatious, the frivolous and the lacking substance type of complaints should not be going anywhere beyond the Human Rights Commission. That is where, rather than having the mandatory conciliation, they should have the power to actually terminate those complaints. I think I read somewhere—and I am not sure whether it was in your submission or somewhere else—that the Human Rights Commission may be given finances to employ a part-time judge or a legally trained person to make that decision. We want a cohesive community; we do not want a situation where people are abusing one another based on some dogma on free speech. We want restrictions on free speech as well. It cannot be an absolute right. That is why I believe the Australian Human Rights Commission Act should be amended so that the complaint-handling process could be streamlined.

Mr LEESER: I have one final question, Dr Singh. Over the course of this inquiry, it has appeared to me that it might help quell public controversy on this topic if there were a clarification in section 18C, by the codification of the current law, that indicates that it is not just mere slights but that it has to be a serious and substantial offence. I just wanted to hear you on that point.

Dr Singh : Absolutely. As pointed out in the beginning, the courts have been very clear about when to allow an 18C complaint to go ahead or when to say, 'This is the right complaint.' They have always gone for serious and substantial offence, not just a feeling. Yes, 18C does not say that, and I do not think it is a bad idea to codify it. If you codify it I think it would be very helpful because the complaint handling process will then apply that code and repeal some of the complaints that should not be going to court anyway. Abuse of the process needs to be fixed. It is not 18C itself—though 18D does give exemption. It is the abuse. There is a small number but there is abuse nevertheless. Those are the things that need to be fixed by codifying or by doing whatever we have to do. The Human Rights Commission may have a person whose job is basically to review those things and see whether a complaint is vexatious or not and can kill complaints if they are vexatious, frivolous or lacking substance.

Senator McKIM: Dr Singh, thank you very much for your submission and your appearance here today in front of the committee. I have a couple of questions. Firstly, based on your conversations with people in the communities that you represent, do you think that, if 18C was to be either weakened or abolished, there would be a likelihood that racism faced by the people you represent could increase?

Dr Singh : I have no doubt that it would increase racist abuse. I have no doubt about that. I have zero doubt about that. If you remove 18C or dilute it, it will have only one outcome, and that would be more racist abuse, and that would not be healthy for the psychological, physical or any health of the multicultural community. We would be the victims. So I do not recommend 18C being diluted or repealed in any way, shape or manner.

Senator McKIM: Thank you. I completely agree. Secondly, I want to go to your comments around providing the commission with the power to terminate certain complaints. I should say that we have evidence that the power already exists for the commission, or that a satisfactory power already exists. But, leaving that to the side, if there were changes made to increase or provide that power to the commission, are you suggesting that people should not then be able to go to court and have their complaints tested in court, or do you think they still ought to have access to the Federal Court in order to have their complaints tested even if the commission has terminated that complaint?

Dr Singh : If the president of the commission or the person with the delegated power terminates the complaint as frivolous, vexatious and lacking substance, that means that the decision can only be changed on jurisdictional grounds, not then challenging the decision itself because then there is no difference to what is happening now. In the last two or three years only five per cent of complaints have been terminated by the Human Rights Commission, compared to 30 per cent about 10 years ago. So you can see that there is a problem here. People have the right to go to court, but they can challenge the decision only on jurisdictional grounds.

I know that Mr Leeser has said that they have to have the money for the costs, but I do not believe that is the right thing, because that is a barrier. No, they can challenge on the ground of jurisdiction but they should not be required to put a guarantee, warranty or some sort of mortgage to cover the costs, because that is a barrier. The cost will come from the Human Rights Commission, not from the other party. So I do not believe that that should be applied.

Senator McKIM: I have a follow-up question. I agree with the point about the costs being a significant barrier. So I am in furious agreement with you there. If the Human Rights Commission in the circumstances you have outlined did terminate a case and someone did not have the right to go to the court on a merits argument, aren't you denying the right of any review from the Human Rights Commission decision to terminate?

Dr Singh : We do not live in the ideal or utopian world. We have to have some limitations on everything. Did I have the right to drive without following traffic rules when I came here? No, I did not.

Senator PATERSON: Did you?

Mr BROADBENT: You don't have to answer!

Dr Singh : No, I followed all the rules.

Mr PERRETT: You've got parliamentary privilege!

Dr Singh : My point, though, is that everything has some limitation. Nothing is absolute. If the complaint has been terminated by the right person—the president of the commission—or somebody with a legal background like a judge or part-time judge, I do not believe it should go to the court. Again, I said nothing in this world is absolute. I want to have a billion dollars. Will I have it? No, I will not. I am saying that we have to accept the limitations in everything to have a cohesive, fair system. We do not want unfairness. Today you are a parliamentarian and have a lot of money, but, if you complain against me tomorrow, I have to put up money for the lawyer. It has to be a right complaint. It has to be a real complaint.

Senator McKIM: I'm pleased that I've got a lot of money; I wasn't aware of that previously!

Mr GOODENOUGH: Thank you for your time today.

Mr BROADBENT: Drive carefully!

Dr Singh : I will.